A three-judge panel ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review.

The latest news at the firm including recent and upcoming events and publications.

1. President Orders End of DACA With Mixed Signals About Future for 'Dreamers'; Two Lawsuits Challenge Program's Termination

The Deferred Action for Childhood Arrivals (“DACA”) program is an Obama-era program allowing certain people (known as the “Dreamers”) who came to the United States as children to continue to live in the U.S. temporarily, attend school, and seek lawful employment. On September 5, 2017, President Trump issued an executive order rescinding the program, with impacts to be felt by Dreamers within a six-month period.

In defending the move to rescind DACA, the President stated that the administration’s position is that DACA was not statutorily authorized, and was therefore an unconstitutional exercise of discretion by the executive branch. The rescission will affect nearly 800,000 DACA recipients, many of whom have been a part of the program since it was originally authorized in 2012.

Based on “guidance from Attorney General Sessions and the likely result of potentially imminent litigation,” the Department of Homeland Security’s Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration’s June 15, 2012, memorandum that created DACA. Ms. Duke explained, “As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.” Ms. Duke said, adding that “no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on.”

President Trump’s statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients “generally” will not be affected: “DHS’s enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients.”

USCIS will no longer accept initial applications for DACA, however any renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017 will be processed for people who qualify for such renewal, which includes people whose current EADs expire anytime between September 5, 2017 and March 5, 2018. All pending applications for advance parole by DACA recipients “will be closed and associated fees will be refunded.” DHS and USCIS both released statements regarding the changes.

The U.S. Senate and House of Representatives recently passed the “Disaster Relief Appropriations Act, 2017” as part of an appropriations bill to increase the debt limit, fund the government through a continuing resolution, and provide emergency funding for hurricane relief.

Among other things, the legislation extended a handful of immigration programs, including the Religious Worker program, Conrad State 30, EB-5, and E-Verify until December 8, 2017, at which time the programs will again expire and require renewal. President Trump signed the legislation on September 8, 2017. The full White House statement is available here. The text of the bill is available here.

After a June 26, 2017 decision by the Supreme Court exempting close or bona fide family relationships from the Travel Ban’s reach, the administration interpreted that reference to include immediate family members and in-laws and excluded grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. In a decision challenging that interpretation, the Ninth Circuit panel observed, “Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.” Noting that the administration had relied on specified provisions of the Immigration and Nationality Act, the court noted, “The Government’s ‘cherry-picked’ INA provisions recognize immediate family relationships as those between parents, spouses, children, and siblings, yet other provisions of the INA and other immigration laws offer broader definitions for close family.” The court also said that the INA was originally implemented with the underlying intention of preservation of the family unit, and noted that the administration’s “artificially narrow interpretation of close familial relationships directly contradicts this intention.”

The Ninth Circuit panel also rejected the Trump administration’s ban on refugees formally accepted by resettlement agencies. The court noted that it typically takes a refugee applicant 18 to 24 months to successfully complete the complex, lengthy application and screening process before he or she can be resettled in the United States. The court cited various hardships that would be faced by resettlement agencies, local affiliates, church congregations, volunteers, and landlords if formally assured refugees were barred from entry and admission to the U.S. The court also noted that refugees’ lives “remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”

The Ninth Circuit’s order was set to take effect on September 12. However, on that date, the Supreme Court indefinitely blocked part of the Ninth Circuit’s ruling relating to refugees. For now, the Trump administration’s travel ban remains in effect, including with respect to refugees who already have formal assurances from resettlement agencies, until the full matter is heard on the merits. The Supreme Court will hear arguments beginning October 10, 2017 in a consolidated case challenging the travel ban.

In the meantime, on Sunday, September 24, President Trump signed a new proclamation modifying the administration’s March travel ban just as the 90-day suspension of entry for nationals of six Muslim-majority countries was due to expire. For information regarding the new Proclamation, including two newly-added countries, please read our September 25 client alert.

4. EB-1, EB-3 Categories Show Progress in Visa Bulletin for October

Several developments were announced in the Department of State’s Visa Bulletin this month.

For the past several months, there has been a backlog for Chinese-mainland and Indian nationals for EB-1. However, with the new fiscal year, the EB-1 category is now current for all nationalities, and visa applications may be filed regardless of the applicant’s priority date. It is unknown how long this category will remain current.

Also, the September 2017 Visa Bulletin included a cutoff date of January 1, 2012, for China-mainland born EB-3 applicants. It has advanced two years to January 1, 2014. The Department estimates that this cutoff date will move up approximately four months in the coming months.

5. State Dept. Changes Standard for Assessing 'Residence Abroad' for F-1 Nonimmigrant Students

The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated on the issue of nonimmigrant intent. The amended provision is contained in theForeign Affairs Manual at 9 FAM 402.5-5(E)(1) and revises the “Residence Abroad Required” provision.

The new provision states:

Examining Residence Abroad: General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

The old provision stated, in relevant part:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.

It is not yet clear how this update will affect future adjudications of the F-1 student visa. It will be important for applicants to emphasize their intent to leave the United States at the end of their studies or optional practical training.

6. State Dept. Issues New 90-Day Rule for Misrepresentation

In related news, the Department of State recently updated the Foreign Affairs Manual at 9 FAM 302.9-4(B)(3)with a new 90-day rule on misrepresentation related to those in the United States “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to [the Department of Homeland Security] when applying for admission or for an immigration benefit.”

The FAM now has an updated subsection, titled “Inconsistent Conduct Within 90 Days of Entry” that appears to discard the prior “30/60 day rule” with respect to adjustment of status after entry on a nonimmigrant visa. That prior rule held that if a person filed for adjustment within 30 days of entry, the government could presume that the person misrepresented his or her intention in seeking a visa or entry. If the act occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose. However, if the facts showed the reasonable belief that intent was misrepresented, the person must present countervailing evidence. If the act occurred more than 60 days after admission into the United States, generally there was no basis for a misrepresentation or inadmissibility finding.

The new language states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry…, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

A finding of misrepresentation or fraud could result in a lifetime bar to entering the United States. For purposes of applying the new “90-day rule,” conduct that violates or is otherwise inconsistent with nonimmigrant status includes:

Engaging in unauthorized employment;

Enrolling in a course of academic study, if such study is not authorized (e.g., B Visitor status);

Marrying a U.S. citizen or permanent resident and taking up residence in the United States after entering in nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The section explains that if a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit,” they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

Immigration practitioners note the potentially devastating consequences of this new guidance. The Immigration and Nationality Act states that anyone who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the United States.

7. Klasko News

2017 KLASKO EB-5 SEMINAR Time to register! Seats are filling up fast to join the entire EB-5 team and a great lineup of guest speakers on Friday, October 13, at the annual Klasko EB-5 Seminar. You will get the latest on EB-5 Visa Program developments and some practical advice from the experts. Register here.

INVESTMENT MIGRATION COUNCIL APPOINTS RON KLASKO TO GOVERNING BOARDRecently, Ron Klasko was appointed to the governing board of the Investment Migration Council. The IMC is the worldwide association for investor migration and citizenship-by-investment, bringing together the leading stakeholders in the field and giving the industry a voice. The IMC sets the standards on a global level and interacts with other professional associations, governments and international organizations in relation to investment migration. The IMC helps to promote high professional standards as well as to improve public understanding of the issues faced by clients, professionals and governments in this area.

IN THE NEWS

William Stock Quotes on Latest Changes from President Trump On Friday, August 25, Bill spoke to Politico.com about the incremental increase of required green card interviews, starting with those moving from employment-cased visas to permanent residency. On September 6, Bill was also quoted in an article on newsworks.org about the few, if any, options DACA recipients may have to remain in the U.S. legally in light of Trump ending the program.

The Legal Intelligencer on Ron’s Appointment to IMC’s Governing BoardOn September 12, the Legal Intelligencer covered the announcement of Ron’s appointment to the Investment Migration Council’s governing board. The IMC is the worldwide association for investor migration and citizenship-by-investment. The IMC helps to promote high professional standards as well as to improve public understanding of the issues faced by clients, professionals and governments in this area.

Michele Madera in the Legal Intelligencer: The Trickle-Down Effects of Trump’s PoliciesOn August 16 2017, the Legal Intelligencer published an article written by Klasko Associate, Michele Madera. Michele examines the potential repercussions Trump’s immigration policies may have on the United States’ relationship with the global community.

Jessica A. DeNisi in the Legal Intelligencer: Changes on the Horizon for the EB-5 Visa ProgramAfter another short-term extension until December 8, 2017, changes loom on the horizon of the EB-5 program. In this article, published by the Legal Intelligencer on September 20, Klasko Associate Jessica A. DeNisi forecasts the future of the program, including review of the new compliance protocols and an analysis of prior drafts of legislation.

Ronald KlaskoRon recently participated at the Investment Migration Forum in Geneva, Switzerland. Ron provided an update on the U.S. EB-5 and E-2 immigrant investment programs to the gathering of government officials, wealth managers, lawyers, accountants, academics and other professionals from around the globe. The Investment Migration Council is the worldwide association for Investor Immigration and Citizenship-by-Investment.

Elise A. Fialkowski On Friday, September 15, Elise participated in Pennsylvania Bar Institute’s event U.S. Immigration Law Under the Trump Administration. Serving as Discussion Leader on a panel entitled Worksite Compliance: Employer Liability and the Undocumented Workers’ Rights, Elise covered how to be proactive with compliance by preparing for increased enforcement, audits and site visits under the Executive Order.

A Possible Solution to the EB-5 Visa BacklogRon outlines a possible solution for Chinese and other investors looking to live in the U.S. some or all of the time during the waiting period of the backlog, or for those who can’t invest the anticipated increase in investment requirement.

The Future of EB-5 In Ron’s latest blog about the potential changes coming to the EB-5 Visa Program, he lists a few legislative options, but also touches on the need to address the backlog for Chinese investors. In a recent article by associate Jessica A. DeNisi, she focuses on changes that may come to the regional centers and enhanced compliance.

Updated Standards and Guidelines for Redeployment of EB-5 Investment Funds Ron, along with two respected securities lawyer colleagues, have revised a White Paper issued in February 2017 on the issue of redeployment of investors’ funds to reflect the new policies adopted by the USCIS.

8 Long-Term Planning Tips for Research-Based Petitions Some of the most labor-intensive petitions to prepare are the research-based employment ones. Academic life is hectic and stressful enough without preparing evidence for a visa petition. Here are eight tips on what you can do to prepare for a successful research-oriented petition later on in your career.

FIRM FEATURE

Klasko Named 2017 Best Places to Work On Thursday morning, August 10, William Stock accepted the award from the Philadelphia Business Journal in front of 370 attendees from the 74 winning companies. The issue announcing all winning organizations hit newsstands the next day, on Friday, August 11. The Business Journal utilizes an objective, scientific employee engagement survey to score the companies. Here are some highlights of what employees had to say about working at Klasko: